2116436 (Refugee) - [2025] ARTA 2165

2116436 (Refugee) [2025] ARTA 2165 (11 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2116436
Tribunal:General Member R Hampson
Date:11 September 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 15 September 2025 at 1:47pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – LGBTIQ – decision without a hearing – clear and unambiguous request – fears discrimination, harassment and bullying – prevalence of homophobia – suffered psychological difficulties including suicidal ideation – country information indicates improved rights – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 9, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 369, 384, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vietnam, applied for the visa on 28 July 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant applied to the Tribunal on 11 November 2021 for a review of this decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant was sent a pre-hearing information form on 31 October 2024. This form includes questions about whether the applicant requires an interpreter if there were to be a hearing, and if they wished for this to be a video hearing, along with a space to add details of their claims for protection. The applicants did not respond to this form.
On 26 June 2025, the applicant was invited to attend a hearing before the Tribunal set down for 16 July 2025. The applicant did not reply to this invitation. On 3 July 2025, the applicant was sent a follow up reminder email regarding the hearing requesting they respond to the invitation.
On 14 July 2025, the applicant’s representative responded to this hearing invitation form stating,
‘we refer to the subject matter and your letter of 26 June 2025 (attached). We are instructed to request that the Tribunal make a decision regarding the application for review based on the information currently before it.’
On 15 July 2025, the Tribunal replied to this email with the following email,
‘We refer to correspondence received by the Tribunal 14 July 2025 requesting a decision in your matter be made on the papers, without holding a hearing.
A request for a decision to be made without a hearing must be received from an Authorised Person to be processed. The request was not received from you or another Authorised Person.
If you wish to request a decision, be made without a hearing, the Tribunal requests that you complete, sign, and return the Response to Hearing Form sent to you with your Hearing Invitation on 26 June 2025 as soon as possible.
Should you wish to appoint a representative, please complete, sign, and return a MR5 – Appointment of Representative form to the Tribunal. This must be signed by both you and the Representative. The form may be found at: Forms |Administrative Review Tribunal.’
On 16 July 2025, the Tribunal received an email from the representative’s email with the MR5 – Appointment of Representative Form however this again contained multiple errors and as such could not be accepted.
The Tribunal responded to this email with the form attached, on 18 July 2025 with the following,
‘We refer to the MR6 Appointment of Authorised Representative form received by the Tribunal in your matter 16 July 2025.
We are currently unable to accept this form as it does not contain a complete contact phone number and address for the representative and contains an e-mail address that is not associated with the firm the authorised representative claims to work for.
Further to this, the boxes on the reverse of the form have not been completed to state what the role the presentative takes for you in this matter.
Until these details are provided and the form signed by both parties and returned to the Tribunal, we cannot accept the submissions from Ms XXXX regarding your request for your protection visa matter to be decided without holding a hearing.
Please contact the representative to correct and complete the MR6 and resubmit this by Close of Business 25 July 2025’.
On 21 July 2025, the Tribunal received a reply to this email from the legal representative with a revised MR5 form attached. This form remained incomplete with different errors to the previous one and with ambiguous details.
The Tribunal on 24 July 2025 replied to the representative’s email with the form attached, with the following letter,
‘I am writing in relation to the application for review made by you in respect of a
decision to refuse to grant a Protection visa.
We refer to the MR5 Form received by the Tribunal on 21 July 2025.
The MR5 form received on this day, like the one previously received on 16 July 2025,
has incomplete and incorrect details.
The Tribunal wishes to verify your identity as Applicant and the Authorised
Representative’s identity before granting a decision on the papers.
The Member requests that you provide a telephone contact number to the Tribunal in
writing so that we may contact you by telephone.
In the absence of a fully and correctly completed MR5 Form and verification of the
identity of you as the Applicant and the identity of the Representative, the hearing will
currently proceed.
We request that this information be provided by Close of Business, 31 July 2025’.
On 31 July 2025, the Tribunal received the following email from the applicant’s email address,
‘Thank you for the invitation to attend a hearing.
I have decided not to attend the hearing and respectfully request that you make a decision on the papers.
My Mobile number is: XXXXX XXXXX ’
On 19 August 2025, the Tribunal notified the applicant to her personal email that her request for a decision to be made without holding a hearing had been granted.
The Tribunal must now consider the following points:
a)Should the Tribunal proceed to decide the matter without holding a hearing?
b)Do the applicants have a well-founded fear of persecution in relation to their home country of India and meet the refugee protection provisions of the Act?
c)Do the applicants meet the protection obligations under the complementary protection provisions of the Act?
a)Should the Tribunal proceed to decide the matter without holding a hearing?
The Tribunal, for the following reasons, has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. The Tribunal has also had regard to the consideration of the exercise of the power under s 106(3) of the ART Act in 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) [1].
Did the applicant consent to proceeding without a hearing?
[1] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met. In ss 106(3) (a) and (b) it is set out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding a hearing.
Section 384(1) of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship.
In this case, the applicant, and the non-participating party (the Minister) are the only parties to the proceedings; and the applicant has requested a decision to be made without a hearing as they have made this request by email on 14 July and 31 July 2025. Whilst there was some difficulty in obtaining this information from the applicant, this ambiguity appeared to be at the hands of the representative or someone purporting to be the representative (the level of error in the forms and the lack of formal engagement was considered by the presiding member as dubious and was not formally explained by the purported representative with the final response requested from the applicant’s registered email address with their personal phone number to confirm their identity). The Tribunal now then finds the applicants response is a clear and unambiguous indication that they do not wish to attend a hearing and wish the Tribunal to proceed to make a decision on the material before it. The Tribunal finds that the applicants have requested, consents to, the Tribunal making its decision without holding a hearing. The Tribunal is satisfied that s 106(3)(a) and s 106(3)(b)(ii) have been met.
Can the issues for determination be adequately determined in the absence of the applicant?
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
In 2010120 (Refugee) [2025] ARTA 550 (13 May 2025)[2], when considering the key phrase ‘adequately determined’, the Tribunal indicated that relevant to the appropriateness of the Tribunal exercising the power under s 106(3) of the ART Act was whether the applicant had been provided with reasonable opportunities to present evidence and make submissions in support of their application for review. The Tribunal stated that while this was a matter for the Tribunal to assess, it was important that any such assessment should be considered with reference to the Tribunal’s objectives in s 9 of the ART Act. The Tribunal further stated that:
In protection cases, matters relevant to assessing the opportunities afforded to an applicant to present their case may include any opportunities provided prior to the delegate’s decision being made; the opportunity provided to respond to the matters raised in the delegate’s reasons for refusing the visa when lodging an application for review with the Tribunal; any responses to Tribunal outreach; and any responses to the general invitation in a notice of hearing for any further submissions or evidence in support of the application to be provided to the Tribunal. [3]
[2] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
[3] 2203419 (Refugee) [2025] ART (13 June 2025).
The Tribunal notes the following chronology of interactions between the applicant and the Department, and the applicant and the Tribunal where they have had opportunities to present their case:
-The applicant lodged their protection visa application with the department on 28 July 2021 along with their passport copies and the applicant’s national identification card.
-It is noted in the protection visa application, the applicant has listed a migration agent in their application along with lodging a Form 956 – Appointment of a registered migration agent, legal practitioner, or exempt person with the Department on 22 August 2021. It is however noted there are discrepancies in this form which include the appointee not identifying herself as a Registered Migration Agent, Legal Practitioner, IAAAS or Exempt Person, the provision of a home address and personal email address rather than her legal firms details, lack of completion of the clients details on the form, and non-completion of the Declaration regarding appointment or ending appointment and the date accompanying her signature along with the clients completion of the declaration with no marking to indicate appointment or ending appointment of the agent and no date accompanying the client/applicant’s signature. The delegate has responded to the email address provided by the stated authorised representative in delivering the protection visa refusal notification on 8 November 2021.
-The applicant applied to the Tribunal on 11 November 2021 and received acknowledgement of this on 15 November 2021.
-The applicant was sent a pre-hearing information form on 31 October 2024. This form includes questions about whether the applicant requires an interpreter if there were to be a hearing, and if she wished for this to be a video hearing, along with a space to add details of their claims for protection. The applicants did not respond to this form.
-On 26 June 2025, the applicant was invited to attend a hearing before the Tribunal set down for 16 July 2025.
-On 3 July 2025, the applicant was sent a follow up reminder email regarding the hearing requesting she respond to the invitation.
-On 14 July 2025, the Tribunal received an email from the personal email address of the applicants listed representative the applicant’s representative responded to this hearing invitation form stating,
‘we refer to the subject matter and your letter of 26 June 2025 (attached). We are instructed to request that the Tribunal make a decision regarding the application for review based on the information currently before it.’
On 15 July 2025, the Tribunal replied to this email with the following email,
‘We refer to correspondence received by the Tribunal 14 July 2025 requesting a decision in your matter be made on the papers, without holding a hearing.
A request for a decision to be made without a hearing must be received from an Authorised Person to be processed. The request was not received from you or another Authorised Person.
If you wish to request a decision, be made without a hearing, the Tribunal requests that you complete, sign, and return the Response to Hearing Form sent to you with your Hearing Invitation on 26 June 2025 as soon as possible.
Should you wish to appoint a representative, please complete, sign, and return a MR5 – Appointment of Representative form to the Tribunal. This must be signed by both you and the Representative. The form may be found at: Forms |Administrative Review Tribunal.’
On 16 July 2025, the Tribunal received the MR5 – Appointment of Representative Form however this again contained multiple errors and as such could not be accepted.
The Tribunal responded to this email on 18 July 2025 with the following,
‘We refer to the MR6 Appointment of Authorised Representative form received by the Tribunal in your matter 16 July 2025.
We are currently unable to accept this form as it does not contain a complete contact phone number and address for the representative and contains an e-mail address that is not associated with the firm the authorised representative claims to work for.
Further to this, the boxes on the reverse of the form have not been completed to state what the role the presentative takes for you in this matter.
Until these details are provided and the form signed by both parties and returned to the Tribunal, we cannot accept the submissions from Ms XXXX regarding your request for your protection visa matter to be decided without holding a hearing.
Please contact the representative to correct and complete the MR6 and resubmit this by Close of Business 25 July 2025’.
On 21 July 2025, the Tribunal received a reply to this email from the legal representative with a revised MR5 form attached. This form remained incomplete and with ambiguous details.
The Tribunal on 24 July 2025 replied to this email with the following letter,
‘I am writing in relation to the application for review made by you in respect of a
decision to refuse to grant a Protection visa.
We refer to the MR5 Form received by the Tribunal on 21 July 2025.
The MR5 form received on this day, like the one previously received on 16 July 2025,
has incomplete and incorrect details.
The Tribunal wishes to verify your identity as Applicant and the Authorised
Representative’s identity before granting a decision on the papers.
The Member requests that you provide a telephone contact number to the Tribunal in
writing so that we may contact you by telephone.
In the absence of a fully and correctly completed MR5 Form and verification of the
identity of you as the Applicant and the identity of the Representative, the hearing will
currently proceed.
We request that this information be provided by Close of Business, 31 July 2025’.
On 31 July 2025, the Tribunal received the following email from the applicant,
‘Thank you for the invitation to attend a hearing.
I have decided not to attend the hearing and respectfully request that you make a decision on the papers.
My Mobile number is: XXXXX XXXXX ’
On 19 August 2025, the Tribunal notified the applicant by email that her request for a decision to be made without holding a hearing had been granted.
The Tribunal is satisfied that the applicants have had an opportunity to present their case and provide all the information, evidence and submissions that they consider important and relevant in support of their application; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that s 106(3) of the ART Act has been met.
BACKGROUND
Evidence before the Department
Migration history
The delegate notes the applicant’s migration history. The applicant arrived in Australia [in] May 2017 on a visitor visa (ceasing on [date] August 2017) and applied for the protection visa on 24 August 2017 and was granted a bridging visa A. This bridging visa was modified on 30 July 2021 to a bridging visa C and again modified on 2 December 2021 allowing the applicant to work. The applicant completed a biometrics identity assessment on 18 August 2021.
Protection visa application
According to their protection visa application dated 28 July 2021 the applicant claims to [be an age] year old national of Vietnam. She claims to be of Vietnamese ethnicity and her religion is listed as Buddhism.
She claims to have a de facto female partner who is [an age] year old national of Vietnam who is not included in this application.
The applicant claims the following in her application to the department:
·That she identifies as a lesbian.
·At high school in Vietnam, she was bullied by classmates because of her sexuality.
·Her family and local community pressured her to have a relationship with men.
·Her parents made derogatory remarks about the LGBTQ (sic) community.
·She suffered psychological harm and suicidal ideations as a result of the homophobia she experienced.
·Local authorities will not support her as homophobia is prevalent in Vietnamese society.
·She could not relocate within Vietnam as homophobia is prevalent within Vietnamese society.
·She fears she cannot freely express her sexuality due to the risk of being the subject of homophobic attacks and fears that she will suffer psychological harm.
Supporting documents

The applicant included a link to a 2020 Guardian newspaper article in her protection visa application about the conditions for LGBTIQ students in Vietnam. Whilst the applicant has stated she was bullied during high school, the applicant is now [an age] year old woman and as such the article has little current relevance to her circumstances as an adult if she were to return to Vietnam in the reasonably foreseeable future. The second article is dated 2016 and from the Times about the conditions for LGBTIQ people in Vietnam. Because of the age of the article, I have given it limited weight in considering its relevance to the applicants life now.
The applicant was not offered an interview with the delegate.
Summary of the delegate’s decision
The delegate has considered the information provided by the applicant in her application, the supporting documents and country information regarding the LGBTIQ community in Vietnam. The delegate noted the DFAT Report for Vietnam states the applicant maybe at moderate risk of societal discrimination and physical attacks are much less common than non-physical harm. Support services and LGBTI friendly spaces exist in Vietnam’s two largest cities. The delegate found the applicant maybe at risk of moderate societal discrimination and stigma but considered that any mental harm that may incur as a result does not meet the threshold for serious harm as various supports are available to the applicant. The delegate found on this basis that they are not satisfied there is a real chance that on return to Vietnam the applicant would suffer persecution for reasons relating to their membership of a particular social groups as defined by their sexual orientation.
The delegate then considered if the applicant met the criterion for complementary protection and relied on the same claims to address this as no further claims were advanced. The delegate considered at this point relocation and found it reasonable to consider the applicant could relocate to Hanoi or Ho Chi Minh City as she is a healthy young woman of working age and has previously completed an English language course in [Country 1]. She also states she is in regular contact with her family and they have supported her financially in Australia and thus maybe able to assist her if she were to return to Vietnam and relocate. It is also reasonable to consider the applicant relocating within Vietnam as the law allows Vietnamese citizens to do so when registering for an official lease although there are a sizeable percentage of these internal country migrants who move illegally and cannot access government education and health care according to the delegate’s understanding of the DFAT Report for 2019 on Vietnam.
As such the delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submissions
The applicant did not provide the tribunal with any evidence or submissions with her application apart from the visa refusal notification and the delegate’s decision record. After the request for a decision to be made without holding a hearing the applicant did not provide the Tribunal with any further material in support of their application. All communications between the applicant and the Tribunal have been outlined in detail in the above paragraphs at 24 to 31 and this is in the main regarding the applicant’s request for the Tribunal to make a decision without holding a hearing and the status of her legal representative which remains unknown at the time of this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa and is therefore someone to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of their Vietnamese passport to the Department. Given this and the fact the delegate did not indicate any issues with their identity claim or nationality the Tribunal accepts they are a Vietnamese national and Vietnam is their receiving country for the purposes of assessing their protection claim.
(ii) Does the applicant satisfy the refugee criterion for protection?
To determine if the applicant satisfies the refugee criterion for protection the Tribunal must consider if there is a real chance of harm if the applicant were returned to their home area of the receiving country in the reasonably foreseeable future. To be a refugee, the applicant must have a well-founded fear of persecution in their home country of Vietnam. This means that the Tribunal must be satisfied there is a real chance the applicant will face serious harm if they return to Vietnam. Not all harm will be serious harm for the purposes of a refugee definition in s 5H of the Act . The harm must be directed at them for one or more of 5 reasons. Those reasons are – their race, religion, nationality, membership of a particular social group or political opinion.
In considering this point the Tribunal has had regard to s 5AAA which asserts the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicant’s claims, or to establish or assist in establishing the claims. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant[4].
[4] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered firstly the claims for protection the applicant made in their protection visa application in 2021. The applicant has provided limited information in support of her claims and has not provided any further submissions to the delegate or to the Tribunal.
The Tribunal accepts the applicant is a now [an age] year old female national of Vietnam who came to Australia in 2017 on a visitor visa and later made an application for a protection visa in 2021. The applicant claims she is a lesbian and lists a de facto female partner in her application but this person is not subject to the application and as such there is no further evidence about this relationship. The applicant claims she was harassed and bullied in Vietnam when she was at school because of her sexuality and pressured by her community and her parents to develop a relationship with a man. She claims she could not obtain protection from authorities as homophobia is prevalent in Vietnam and she could not relocate within Vietnam for the same reasons of the prevalence of homophobia.
The applicant has cited two news articles one from 2015 which I along with the delegate place little weight on because of its now 10 year old age and therefore lack of current relevance. The second article particularly refers to Vietnamese students and perhaps was relevant when the applicant was a school student and as she claims bullied for her sexuality. However, the applicant is now [an age] year old woman and as such I give the article limited weight also as it is not now relevant.
I have no further evidence before me with regard the applicant’s sexuality and claims of harm in Vietnam prior to her departure in 2017. The applicant has had many interactions with both the delegate and the Tribunal to provide further information in support of their claims and has not done so to date and as such I only have the same information and evidence the delegate relied on to make their decision to refuse the application on, which is the applicant left Vietnam in 2017 because they are a lesbian and feared harm in the form of harassment and bullying if they were to return in the reasonably foreseeable future.
The applicant has also stated they suffered from psychological difficulties including suicidal ideation as a result of this harassment and bullying. The applicant has not expanded on this claim, nor have they provided any medical or psychological evidence of these statements with regard the past in Vietnam, or whilst living in Australia. As such these claims regarding psychological harm and suicidal ideation as claimed by the applicant with regard to her sexuality and ensuing bullying and harassment in Vietnam in the past or a fear of this in the future if they were to return to their home country are as they stood before the delegate who made a decision to refuse the applicant a protection visa on the grounds they considered there was not a real chance of the applicant suffering persecution if she returned to Vietnam for reasons relating to their membership of a particular social group defined by their sexual orientation.
I have reviewed the country information included in the delegate’s decision record which states,
‘Country information indicates that there has been a marked improvement over recent years in the recognition of lesbian, gay, bisexual, transgender and intersex (LGBTI) rights. Same-sex relationships are legal in Vietnam. Same-sex wedding ceremonies were decriminalised in 2013, paving the way for further legal reform in 2015 with the revised Law on Family and Marriage that lifted the prohibition on same-sex marriages.
However, these changes stopped short of giving legal recognition or protection to same-sex couples in relation to areas such as inheritance and adoption. Additionally, although the Vietnamese government supports international policy against violence and discrimination in relation to individuals based on their sexual orientation or gender identity, their laws still do not offer them protection from discrimination due to their sexual orientation or gender identity in relation to housing, employment, or access to services.
As LGBTI rights gain improved recognition by the law, Vietnamese society has also demonstrated greater acceptance of the LGBTI community and awareness of the issues they face, albeit inconsistently across the country. This has been aided by the fact that the government does not consider LGBTI issues to be politically sensitive. The first gay pride rally in Vietnam, Viet Pride, was held in Hanoi in 2012 and is now an annual, nationwide event. While mainstream media has been found to be prejudiced in their representation of the LGBTI community, [5]mainstream and social media have increasingly provided various platforms for LGBTI people to voice their stories and issues, expanding awareness and changing perceptions of the LGBTI community. Support services targeted at the LGBTI community and LGBTI-friendly spaces exist in Hanoi and Ho Chi Minh City.
While societal perceptions towards the LGBTI community are improving, particularly in major cities where changes in social norms and attitudes are happening faster, traditional perceptions of gender, sexuality and the family unit in Vietnamese culture remain conservative. Societal discrimination and stigma against LGBTI people remains widespread and is worst towards transgender people. Discrimination and physical assault most often occur within families, schools, workplaces, and health providers. Violent attacks are much less common than non-physical harm such as verbal insults and online abuse, but those who experience violence often choose not to report the incident due to the perceived commonplace nature of the violence or a lack of trust in being able to receive protection from authorities. However, a growing number of civil society organisations have emerged, providing avenues for the LGBTI community to receive support and advocacy.
Accordingly, DFAT assesses that LGBTI individuals face a low risk of official discrimination, and a moderate risk of societal discrimination on a day-to-day basis. As most societal discrimination and violence against LGBTI individuals is within the domestic context, DFAT also assesses that LGBTI individuals can normally relocate within Vietnam, depending on their individual financial circumstances, household registration requirements, and the availability of LGBTI support services and networks.[6]
[6] Delegate’s decision record, p3-4, 8 November 2021.
The delegate’s decision record is dated 8 November 2021 and as such their materials extracted here are not reliant on the most up to date country information that the Tribunal is aware of. I have then considered the DFAT Report for Vietnam issued in February 2025
‘Vietnam is considered progressive by regional standards in its treatment of LGBTQIA+ persons. Same sex relations are not prohibited by law, and never have been – a person cannot be arrested because of their sexual orientation or gender identity. Vietnam lifted a ban on same-sex marriage in 2014, although it is yet to be legalised (same-sex couples do not have the right to adopt children). The Law on Marriage and Family (2014), which defines marriage as the establishment of a husband-and-wife relationship between a man and a woman, is due to be considered for revision by the National Assembly in the next Congress period(commencing 2026)’[7].
DFAT assesses members of the LGBTQIA+ community face a low risk of official discrimination and a moderate risk of societal discrimination, particularly by their families and in schools. While some members of the LGBTQIA+ community may experience violence in a domestic setting, members of the LGBTQIA+ community face a low risk of violence overall and have access to state protection should they need it.[8]
[7] DFAT Report for Vietnam, 3.151, p 50, February 2025.
[8] Ibid
As I have not been able to speak with the applicant about any more up to date country information at a hearing I have carefully inspected the country information the delegates decision relied upon and the most up to date country information, (the February 2025 DFAT Report for Vietnam) and not the risk of official discrimination remains low and the risk of societal discrimination on a day to day basis remains moderate and this societal discrimination remains in the domestic context and that it remains that DFAT’s assessment regarding relocation is available to LGBTI individuals depending on financial and household registration circumstances along with support services.
I am therefore not satisfied the applicant has a well founded fear of persecution as defined under s5J of the Act. For these reasons given above, I am not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Having found there is no real chance of harm of any kind, there is no real risk, as the real chance and real risk tests are the same, and the Tribunal has adopted the same findings as those for the real chance test as outlined in paragraphs 59 to 67 above.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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